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SENATOR DRAKE, OF MISSOURI, 



TO 



SENATOR JOHNSON, OF MARYLAND, 



PUBLISHED BY THE U>fIOX REPUBMCAN CONGRESSIO^f AL COMMITTEE, U'ASIIINGTON. D. C. 



WASHINGTON, D. C: 

PEINTBD AT THE OFFIC£ oP THE GREAT REPUBLIC, 499 ELEVENTH STREET. 

1867. 






" THE DANGEROUS CONDITION OF THE COUNTRY, THE CAUSES 
WHICH LED TO IT, AND THE DUTY OF THE PEOPLE." 



Washington, November 9, 1867. 
jP^bn. Reverdij Johnson : 

■ Dear Sir: There has come to me, under 
your frank, a pamphlet by "AMarylander," 
the comprehensive title of which is given 
above. Its having so come, and its senti- 
ments and style, led me to ascribe its author- 
ship to you ; and in this I am confirmed by 
information to that effect from a citizen of 
Baltimore. It is this in part, if not mainly, 
which impels me to this notice of the docu- 
ment. Common men may write and print 
What they please, and do little harm ; but not 
so with one of your high position and distin- 
guished reputation. Tliough cheerfully ad- 
mitung my inferiority to you in the latter re- 
spect, I propose, for the sake of ti-uth and 
right, an esamination and discussion of some 
positions assumed in this pamphlet, which I 
consider to involve grave and serious errors 
of fact and of doctrine. 

I agree with you in your opening proposi- 
ticr:. 1»hat ''no reflecting citizen can be insen- 
sible to (.he dangerous condition of the coun- 
u. y."' But when we attempt to assign caus- 
es for that condition we diverge, not again, 
I l(-nr, to come together. And as you and I 
diverge, so do the people. The loyal men 
of the natic^ trace with exact precision and 
with immovable conviction all our dangers 
to that rebellion, to sustain which Maryland, 
though nominally not engaged in it, sent so 
many men and so much money, and in behalf 
of which her disloyal people shed, in the 
streets of your own city, the first blood of 



that t«rrible four years' war. On the other 
hand, disloyalists of every shade and degree 
concur with you in your "obvious answer," 
that "the course which the legislative depart- 
ment has pursued has brought the country 
into this predicament, has been the cause of 
the present trouble." The loyal men reach 
their conclusions through examination, study, 
and reflection, such as theynever before gave 
to public affairs ; the other class reach theirs 
by that obliquity of understanding with which 
a devotee of State rights and Slavery sees 
nothing in the rebellion but what was right 
and laudable ; nothing in its overthrow but 
an outrage ; nothing in the Union but a con- 
federacy, which any part may, of right, shat- 
ter at vnll ; nothing in the nation but a loose 
aggregate of disjointed parts ; nothing in the 
Constitution but an imbecility ; nothing in 
anything but his State, which yet, in com- 
parison vrith the country, is '"'but as a patch on 
the earth's surface." Between two sTich an- 
tagonistic bodies it is vain ever to hope for 
concord, while each is aiming to wield the 
destiny of the country. Their differences 
can, in the nature of things, be settled only 
hy force. The force of war has been tried, 
with what result history has recorded ; we 
have now to appeal to the force of numbers at 
the ballot-box, and history, I do not for an 
instant doubt, will in due time, and before 
long, record a similar result on behalf of 
America's loyal men. 

But what is the course pursued by Con- 
gress, which, in yoti^ view, so endangers the 



country? This: that though " the war ter- 
minated more than two years and a half 
since, with complete success, and no armed 
or other resistance to the Constitution and 
laws of the United States exists anywhere, 
yet the Union, ivhich the insurrection for a 
time suspended, continues suspended, and ten 
of the States and their people are not only 
not admitted to equal rights with the rest, 
but, as far as the legislative department is 
concerned, are denied them, and subjected 
to mere military rule." 

You, Mr. Johnson, have not lived so long 
without having learned that words are things. 
When, therefore, you say that the Union was 
suspended by the insurrection, I suppose you 
mean what your words import ; and yet, there 
never was, during the war, a time when the 
Union was suspended, and it is not suspend- 
ed now. Had the rebellion been successful, 
a part of this nation would have become a 
separate nation, and the Union would have 
been thereby broken; but never could it be in 
a state of suspension. Were the people of 
ten or eleven counties in Maryland to rise in 
insurrection against the government of that 
State, and were that government to pro- 
ceed to put them down by arms, it would 
be just as correct to say that the union of the 
insurgents with the body of the people of 
Maryland was suspended, as to say that the 
slaveholders' rebellion suspended the union 
of the people of the United States. For, 
observe, sir, that in either case it is a uuion 
of people and not of corporate bodies, wheth- 
er States or counties. The corporate ca- 
pacity is the mere shell ; the people are the 
kernel. And herein is the point of differ- 
ence between us. From the general tenor of 
your argument, I suppose you to consider 
the Union a mere confederacy of States, as 
corporate bodies ; but I hold it to be no such 
confederacy, but a real, actual, complete 
commingling and coalescence of the people. 
You consider, I take it, that the Union dates 
from the adoption of the Constitution ; I 
maintain, and challenge refutation, that the 
Union existed not only before the Constitu- 
tion, — else why should that instrument de- 



clare itself to have been made "in order to 
form a, more perfect union?" — but before the 
Confederation, and, moreover, before the 
Declaration of Independence. , Go to his- 
tory, and you will see it was so. You hold 
further, I suppose, that the Union exists 
only under the Constitution ; I, that it exists 
outside of the Constitution, and that that m- 
strument is the mere form of government 
which the already united people adopted as a 
bond of union. Blot out the Constitution to- 
day, and the united people would still exist as 
a nation. and would, if necessary, extempoi'ize 
a Government to preserve their Union. 

The confusion which has attended the dis- 
cussion of these topics has mainly resulted 
from the improper and indefensible use of ' 
the word State. For forty years or more, 
(with direct reference, as the result has 
proved, to an eventual attempt at secession 
and disunion) the doctrine was inculcated, 
that a State is an independent entity, invest 
ed with "ultimate and absolute sovereignty" 
as Alexander H. Stephens phrased it ; an 
entity, admitted to be somehow in the nation 
without being actually a part of it ; a wheel 
in the great national machine, with every 
part connected with and adjusted to it, but 
yet capable of being jerked out of its adjust- 
ment at any moment by its managers, with no 
right in the managers of the wkole machine 
to prevent or object. "A State, '^ "my 
State,''^ " a free, sovereign and indepeudent 
Steele,^' has been the form of speech, with 
as little mention as possible of the joeoplc, 
until at last the true idea of a State seems to 
have been measurably lost sight of in the 
dust with which secessionists have enveloped 
it. The cardinal error in all this— in which ^ 
I fear, you, Mr. Johnson, participate — is in 
the notion that, in some occult and indefina- 
ble way, the people who, before they become 
a State, are as much in and of the nation as 
a man's lungs are in and of his body, be- 
come something else the moment they are 
organized in a corporate capacity as a State; 
a sort of separate and segregated element, 
foreign in some sense to the mass of which 
it was a moment before an acknowledged 



part ; a sometking in which the personal idea 
is merged in the corporate, and the people 
lost and forgotten in the corporation. Against 
this utterly unfounded and mischievous view 
of the matter I have for 3'ears contended ; 
and I feel it to be of sufficient importance to 
contend against it still • for, manifestly', the 
heresy is struggling again for life and mas- 
tery. 

Vattel builds the whole system of the law 
of nations upon the definition of a State as 
a body politic, a society of mex united to- 
gether for the. purpose of promoting their 
mutual safety and advantage by the joint 
efforts of their combined strength. This 
definition includes every form of association 
for the formation of a state, whether it be 
called a monarchy, an aristocracy, a repub- 
lic, or a democracy : and in this country it 
applies equally to the United States, or to a 
single State. One of the United States, 
therefore, is nothing but a body of people 
inhabiting certain defined limits, and united 
together as a body politic, but at the same 
time a subordinate part of a larger mass of 
people, united together as a larger body pol- 
itic, under a name which itself embraces 
every State. The people of a State are, 
therefore, merely a fraction of the whole 
people of the Union. There is no legerde- 
main by which you can suspend the connec- 
tion of the people of a State with the whole 
mass, an}' m-ore than you can suspend the 
connection of your arm with your bod}'. 
Amputation alone can separate in either 
case. All errors on this subject. Mr. John- 
son, were, or ought to have been, exploded 
by the war; and it is vain, if it bt- not 
wicked, to attempt to revive them now. The 
nation asserted and maintained its power 
over every part of its people. '"Our fathers,'" 
to whom you refer with great apparent rev- 
erence, declared, and by their descendents 
it has been proved, past any possibility of 
future question or doubt from any quarter, 
that the American people, though divided 
into m^any distinct States, are a NATION : 
and it is now equally settled forever, that 
State or iio State, every part of the people 



must bow to the lawful power of the whole. 
How, then, in view of these positions, 
could you, so long and so justly distinguished 
as a jurist, say that the Union was suspended 
by the insurrection ? Was it to give point to 
the accompanying charge that the Union 
" cow^mf^es suspended " through the uncon- 
stitutional and unjustifiable action of Con- 
gress? Or was it to make way for your sub- 
sequent assertion that the prior relations of 
the States are now restored, and that they 
and their citizens are "entitled to all their 
righis, as at first ?' ' Or was it to enforce your 
appeal to the people to restore at the earliest 
moment to the Southern States all those 
rights, to rebuke the men who would prevent 
it, and to condemn the Radicalism of the 
day? 

No, Mr. Johnson, the question before the 
country is not whether the Union "continues 
suspended"' through the action of Congress. 
The very decision of Chief Justice Chase 
quoted by you rejects the idea of a suspen- 
sion of the Union, and limits the effect of 
the rebellion to a suspension of the " prac- 
tical relations " of the rebel States to it, 
just as the practical relations of husband and 
wife are suspended during aii angry sep- 
aration, though their union in marriage still 
exists. What, then, is the present position 
of those States and their people, authorizing 
the action which Congress has seen fit to 
to take? This is the question, and to it I 
will now address myself for a time. 

At the termination of the rebellion the peo- 
ple of the rebel States were still there, and 
were, as before, a part of the nation. Nev- 
er for a moment did they, in fact, cease to 
be so. True, they for a time threw off the 
nation's government and put themselves 
under another ; but their a))solute and final 
severance from the nation was the only 
thing that could possibly destroy their union 
with it. As corporate bodies or States they 
were for a time out of practical relatione 
with the Union, but never for an hour out o£ 
it ; for there never was an hour when the 
mighty hand of the nation was not upoc 
them. Their failure to establish anothei 



% 



government settled that point beyond coa- 
troversy. And so, when the rebellion ended, 
they were, just as before it began, and as 
throngh its whole career, a part of the 
nation. 

How, then, did their position after differ 
from that before the rebellion ? In this 
most essential particular, that when their 
revolt was subdued, and the power of the 
nation fully re-established over them, they 
were without any laicful State governments. 
The people of each rebel State were still the 
State : their corporate character, which had 
been received from the nation, still existed ; 
but their governments were alien and hostile 
to the Constitution of the United States, and 
therefore utterly unlawful. And herein is 
the distinction which solves the whole ques- 
tion, namely, between people as a part of 
the nation, organized into a State, and the 
government which they, in their corporate 
capacity as a State, possess. The latter may 
be changed, modified, or overthrown ; but 
nothing short of successful revolution can 
sever any portion of the people from the 
Union. This distinction has not been suffi- 
ciently observed ; but it is the only one which 
make^ the whole subject clear. 

When, therefore, the rebellion was subdued, 
the State governments which had existed 
under the Constitution were gone. State 
governments there were : but they were 
formed by rebels, as part of the machinery 
and support of the rebellion, and when the 
rebellion became a nullity those governments 
became, as to the nation and the Constitu- 
tion, nullities too. And so the nation found 
ten of its States without governments valid 
under the Constitution. Of course, this con- 
dition of things could not continue ; those 
States could not remain without govern- 
ments. Self-disrobed of the governments 
which identified them with the nation, who 
should rehabilitate them? Your idea, I take 
it, is that they themselves had the right to 
do so ; but mine is that they had renounced 
and abjured that right — had followed that 
renunciation with war, and when subjugated 
it was not for them to resume their practical 



relations with the Union at such time and in 
such form and manner as they pleased, re- 
gardless of the will of the nation. What, 
then, was their position ? Exactly that of 
any portion of the nation for which no law- 
ful local government has been provided. 
To what power, then, were they subject? 
Manifestly to that of the nation, and no 
other. And to this irresistible conclusion ' 
we come — in spite of all sophistry and spe- 
cial pleading — that to the nation and to it 
alone could they look fori rightful authority 
to proceed in the formation of lawful State 
governments, just as the people of newly 
settled Territories must look to the same 
power. 

The right of Congress, therefore, to pro- 
vide governments for the rebel States does 
not depend, as you allege, upon the doctrine 
that " the insurrection, before it was sup- 
pressed, assumed such proportions as made 
it a war, and brought it within the war pow- 
er vested in that body by the Constitution." 
I am content to put the war power wholly 
out of view, and to rest the right of Con- 
gress in the premises upon the broad prop- 
osition that, in the very nature of the case, 
it results from the fact of our national 
existence, that when any portion of the 
people of the nation are v)ithout a lawful 
local government, Territorial or State, there 
is no power on earth but that of thenation 
which can authorize them, to form one; 
and that the nation, in this matter, can 
ad only through its Congress. In such a 
case the President has not a shadow of au- 
thority, except as it may be vested in him 
by that body. As you well know, his prov- 
ince is to execute laws, not to frame govern- 
ments. It matters not from whom the claim 
of executive power in this particular pro- 
ceeded, whether from Mr. Lincoln or his 
successor ; come whence it may, it is wholly 
unwarranted by the Constitution. 

If, then, the direction of the reorganiza- 
tion of governments in the rebel states is the 
province of the nation,^ it necessarily follows 
that Congress is supremely unrestricted as 
to the time when, and the mode i-n which it 



will act in the premises. If it chose fco leave 
those States for a time jnst as it found them 
at the downfall of the rebellion, what power 
could make it move, or could, without its 
authority, set the machinery of reorganiza- 
tion in motion? If it decides to put the 
T«bels under military rule until new .State 
■governments, loyal to the Union, and formed 
under the authority and direction of the na- 
tion, shall have risen over the ruins of those 
which sprung from a bastard and piratical 
confederacy, who .shall gainsay it? And 
■what injustice, pray, is there to the rebels in 
that? bid they not first appeal to arm_s? 
In so doing did they not invoke upon them- 
selves all the consequences, near and remote, 
present and future, actual and contingent, 
of their atrocious act ? And shall they now 
whine because, whipjDed at their own game, 
the victorious nation puts its military grip 
upon tliem ? 

But the supreme authority of Congress in 
the case, is not, and cannot be, confined to 
the time and mode of reorganization in the 
rebel States. If it has any power over the 
subject it has all, unless you can point to 
some restraining clause in the Constitution ; 
which, with all due respect for your greater 
age and experience at the bar and in the 
Senate, I defy you to do. The fact is, Mr. 
Johnson, turn from it as you may, do all 
you can to put it out of sight, or yourself 
out of sight of it, still the great truth comes 
back, inevitable as the sun, that the power of 
Congress begins at the earliest inception of 
the work, follows it in all the stages and 
p.articulars of its progress, and ends only 
when the reorgaiiizationis by itself declared 
complete. Hence the resistless conclusion, 
that when Congress moves in the matter of 
authorizing any portion of the people to 
form a State government, it alone has the 
power, as it is ks impei-ative duty, to decide 
and declare ivho of that people shall have 
a voice in the formcction thereof. If it has 
not this power, it has none, or at any rate 
none of any practical valne. If the people 
in such case have a right to proceed to form 
a government, without any declaration by 
Congress on that vital point, whence do they 
get that right ? Certainly not from any law. 
If they have no law for it, they act, if they 
act at all, merely by sufferance, and their 
work has no legal validity until sanctioned 
by Congress. I do not forget that States 
have been organized without any previous 
enabling act of Congress; but they were not 
subjugated rebel States, and their cases 
therefore are not precedents applicable to 
the matter in hand. But here, perhaps, may 
be invoked the heresy of independent and 
iaiherent SUite rights, or as Washington 
stigmatized it, "that bantling, sovereignty." 



I will not stop to discuss this rotten core of 
the rebellion. Has not the nation in the 
last seven years ©utlived all respect for it? 
As Jeff. Davis said, "Secession was the 
legitimate consequence of State sovereign- 
ty. ' ' Thci two lived together, ' ' fought, bled, 
and died " together, and are buried together, 
with no day of resurrection in prospect. 
Even your trumpet-blast, Mr. Johnson, can- 
not rescue State sovereignty from its grave 
with the rebellion. 

Thus far I have refrained from reference 
to any particular provision of the Constitu- 
tion as warranting the legislation of Congress 
over the rebel States, and have deduced its 
right in that respect from our very existence 
as a nation, and the imperative necessity 
of the case. I would willingly rest it, before 
any impartial and enlightened tribunal, upon 
that ground alone. But you have appealed 
to the Constitution, and to that let us go. 

You assert that in legislating for the South- 
ern States, and subjecting them to the mili- 
tary power, Congress not only disregards 
the Constitution, but acts without authority 
from the people of the United States ; and 
you characterize as "absurdity" and "folly"- 
its claim of constitutional right to do these 
acts. Per contra. I hold that its le,gislatvon 
toward the reconstruction of those States 
finds a clear and ample warrant in that clause 
of the Constitution which requires that 
" The United States SHALL guarantee to 
EVERY State in this Union a republican 

FORM OF government." 

I have endeavored, and I trust not unsuc- 
cessfully, to show that when any portion of 
the people of the nation are without a lawful 
State government, it is the province of Con- 
gress alone to provide it for them. Let me 
in this connection, remind you again, that 
"the United States" means the people of the 
United States, and that a State means the 
people of a State. Neither has, or can have, 
any existence but in the people. The guar- 
anty in the above clause is, therefore, a 
promise by the whole people of the United 
States to every part of the people, whether 
organized into States at the time of the 
adoption of the Constitution, or thereafter 
at any time to become so. To the reflecting 
mind there is nowhere in the Constitution a 
moj'e fatal blow to State rights heresies, or a 
more complete vindication of the supremacy 
of the nation over its every part. Under 
that clause Congress has an unrestricted and 
illimitable right to control the primal organ- 
ization of State governments, so far as to 
secure to the people thereof a republican 
form of government. The right to live 
undersuch a government is solemnly pledged 
to every man, woman, and child in every 
State ; and every man, woman, and child ia 



8 



the nation is concerned in the fulfilment of 
that pledge to every other. 

This is not the time nor the place for a gene- 
ral discussion of that clause. At another 
time and in another place I may have occa- 
sion to consider it in reference to the State 
with which you are officially identified, when, 
perhaps, you may get a clearer, if not a more 
pleasant, view of the wide sweep and tran- 
scendent power of a provision which has 
heretofore lain dormant in the Constitution, 
and would have probably still slept, but for 
the grasp at supremacy which rebelism has 
made in that State and others. At present 
let us stick to our text, and look at the clause 
in connection with the rebel States. 

No trained juridical mind like yours can 
fail to see that that clause looks to action by 
Congress in two cases : first, in that of ini- 
iiatinga. Stategovernment when none before 
existed ; and, Sixondly, in that of a State 
government already existing. In the former 
it is the duty of Congress to take all needful 
steps to insure that the government about to 
be established shall be republican. In the 
latter it is equally its duty to institute neces- 
sary measures to set aside an unrepublican, 
and institute a republican, form of gov- 
ernment. 

I have previously shown that the rebel 
States were destitute of lawful governments. 
Congress, in the exercise of its sole and ex- 
clusive authority in such case, has solemnly 
affirmed that fact, even liy a constitutional 
majority over the President's veto: and no 
earthly power can at any time or in any forum 
set aside its affirmation. The case is, there- 
fore, »ne of iniiiating State governments, 
and to that alone 1 will direct my remarks. 

In reference to it. my first and fundamen- 
tal proposition is, that, as Congress is 
charged vnth the general duty of securing to 
the people of every State a republican form 
of government, without any specification in 
the Constitution of when or how it shall per- 
form that duty, the inevitable inference is, 
that the ichen and the hoic are left entirely 
to the judgment of Congress, whose decision I 
cannot be reversed or revised liy any other | 
authority. j 

My second proposition is, that when Con- \ 
gress decides that it is necessary for it to j 
supervise and guard the initiatory steps in 
the establishment of a State government, so 
as to secure its republican character, it has 
power to '' make all laws which shall be 
necessary and proper for carrying into effect" ' 
tiie power vested by the Constitution in it, 
and that it alone has the right to judge what 
laws are necessary and proper to that end. 

My third proposition is, that the designa- 
tion, in advance, of the persons in any com- 
munity who shall have a voice in the forma- 



tion of the contemplated government, is a 
necessary and proper means toward guaran- 
teeing that the form of government shall be 
republican. 

My fourth and last proposition is, that, in 
designating in the reconstruction acts who in 
the rebel States shall have such voice, Con- 
gress has decided it to be a necessary and 
proper step toward fulfilling the constitu- 
tional guaranty in tliose States ; and its de- 
cision on that point is final and conclusive 
against all the world. 

I have purposely confined myself to the 
mention in this connection of the single 
point of the antecedent designation by Con- 
gress of the persons to have a voice in the 
formation of governments in the reV>el States; 
because you, Mr. Johnson, know, as does 
every well-informed man in the nation, that 
therein centres the whole struggle over re- 
construction. You and every such man 
know that if the reconstruction acts had left 
the formation of governments in those States 
to v-liite men exclusively, there would have 
been no such struggle. It is against the 
brave and generous stand taken by Congi-ess 
in securing to the negko a voice in that 
icork that the rebels and their Northern Dem- 
ocratic allies kick. Military rule would not 
have galled the South, but for the protection 
it gave Mm in that regard. Exclusion of 
the rebel States from Congress would have 
hcen counted abagaielle if no ballot had been 
jiut into 7t/s hand. The South would to-day 
gladly agree to such military rule and sxtch 
exclusion for half a century to come, if guar- 
anteed against negro suffrage. ^\Tiy? Be- 
cause negro svffrage is an inqnegnable bar- 
rier to his practical re-enslavement. With 
all my heart I glory in the course of Con- 
gress in this respect; not, as God is my judge, 
because I hate the rebels, or would humili- 
ate a fallen foe. hut because it is RIGHT 
that the negro should be in every particular 
A CITIZEN, and because I can see no glimmer 
of hope for the peace of the countrj- but iu 
his complete enfranchisement. 

Had Congress done otherwise than it did, 
it would have left the reorganization of the 
Southern States to the very reljcls who had 
disorganized them, and whose embattled ar- 
ray the arms of the nation had just dispersed, 
but, unhappily, without sul)duing the spirit 
of rebellion in them. And more and 
worse, it woitld have shut out from that part 
of the work the only portion of the Southern 
people who, through good report and 
evil report, were, from first to lasst,. 
loyal to the Union. How that would 
have resulted I need not say ; we saw it all, 
with deep and burning humiliation, under 
the experiment of '' My policy. ^^ Had Con- 
gress done that, it would have deserved, and 



9 



I trust, received, from the lo3'al people of 
the country a bitterer execration than ever 
fell upon any body of public servants in this 
land. But it took the truer, \viser, more 
manly, and more patriotic course, and de- 
clared that the long-enslaved, sorely-tried, 
but always patient, magnjinimous, and loyal 
negro, should have, in the ballot, the means 
of protecting in himself and securing to his 
posterity the nation's gift of his freedom. 
Had it done less, of what value would tli it 
freedom have been to him ? Of just as much 
as your money to you, with a robber's pistol 
at your head and a demand for your money 
or your life, and you with not so much as a 
pen-knife for your defence. Strong language, 
Mr. Johnson, but the whole nation knows it 
to be true. 

From the determination of Congress thus 
to arm the negro for self-protection may have 
come in some degree the delay in the work of 
reconstruction ; not because there was in this 
fact itself any just cause of delay, but be- 
cause the rebels, backed by a faithless Pres- 
ident, determined to resist, and are still re- 
sisting, in every way short of actual appeal 
to force, the negro's enfranchisement. And 
this resistance is not because of the mere 
fact of his enfranchisement, but because, 
enfranchised, he will not vote, and cannot 
be got to vote, with rebels or for rebels, or 
at their dictation. Could he be made, as he 
was while in slavery, the abject tool of his 
rebel master, the work of reconstruction 
would glide smoothly on to completion, to 
the entire satisfaction of the rebels, but at 
the same time to the swift degradation 
and final despair of the negro, and to the 
blasting and eternal disgrace of this nation. 

If, therefore, it were true, as you allege, 
that the Union '• continues suspended,- it 
is not, as you say, "on account of the 
course which the legislative department has 
pursued," for that course was just, honest, 
and right before God and the nations of the 
earth ; but it is because the subjugated reb- 
els resisted the right, and persisted in the 
wrong. Let them, if they please, under the 
counsels of able and venerable men like 
yourself, prolong their efforts to keep the 
negro down ; but they will learn that he 
cannot be kept down, if the nation 
keeps its honor with them; anu it will 
KEEP IT ! No cry of danger to our insti- 
tutions will .stay its resistless march to this 
grand consummation. No appeal to the 
people against the subjugation of ten States 
to negro rule will avail ; for the loyal people 
of the nation will answer back with a shout, 
Better to the loyal negro, than to the rebel 
white man ! Least of all is it of use to go 
back, as yon do, to the Crittenden resolution 
of July, 1801, which declared that "this 



war is not waged for any purpi'se of con- 
quest or subjugation, or purpose of over- 
throwing or interfering with the rights or 
established institutions of those States, but 
to defend and maintain the supremacy of 
the Constitution, and to preserve the Union, 
wifh all the dignity, equality, and rights of 
the several States unimpaired." Why, sir, 
you might as well, in etymology, appeal from 
Webster's Unabridged to the New England 
Primer. Is it possible, Mr. Johnson, that 
you have not yet learned, that what little 
life that resolution had was trampled out of 
it in blood before it was half a year old ? 
Why dig up its .shrivelled carcass at this late 
day to fill the air with mustiness ? Did you 
not see that as tl^c- robellion grew in propor- 
tions the nation outgrew (Congressional swad- 
dling clothes and expanded into giantship? 
Know you not that the war ii-'frpreted itself 
as a war of '•subjugation?' Have -you 
never discovered that, in spite of that reso- 
lution, it came to be a war which didoverthrow, 
and could not help "overthrowing, establish- 
ed in.stitutions of those States," just as it 
was a war whicli did kill, and could not 
help killing, rebels? Have you yet to learn 
tluit, long since, the " dignity " of those 
States fell to zero ; that their "equality" 
vfasfelo de se; and that thefr "rights" 
lapsed into the hands of an insulted and 
outraged nation, to be restored to them only 
when, how, and in what form and measure 
that nation pleased ? All this is recorded in 
blood upon the pages of history ; and why, 
Mr. Johnson, have you not seen the record, 
or, seeing, have not understood it? "Read, 
mark, learn, and inwardly digest" it now, 
I pray you, for it conveys a mighty lesson. 

There is much more in your pamphlet 
which might with propriety be noticed; but 
this letter is already so extended that I must 
draw it to a close. One or two other points, 
however, cannot be passed over, and on 
them I will bestow a few words. 

It seems, Mr. Johnson, that yoti deem it 
the best way to touch the people through the 
pocket nerve, and to reach that sensitive or- 
gan you roll out the following broad asser- 
tions: 

" Ten of the States and their people are 
not only not admitted to equal rights with 
the rest, but, so fiir as the legislative de- 
partment is concerned, a'-e denied them, and 
subjected to mere military rule. The conse- 
quence is that the whole potential wealth of 
uiiose States is, and will be as long as the 
present state of things continues, lost to 
the nation. Its great staples of sugar, rice, 
and cotton, which in the past so materially 
contributed to the general welfare, are not 
and cannot be produced. They nerved the 
arm of industry in all the other States as 



10 



inch as, if not more than, in the South. 
'hey enriched commerce, supplied the needs 
f the manufacturing inrlustry of the East, 
irnished the best markets for its products, 
ave employment and remunerative wages 
3 its employees, and increased the revenue 
f the country by increasing its imports. 
lS long as this political disorganization re- 
gains, the more destructive will it be to the 
iterests of all. What has brought the 
onntry into this predicament ? The answer 
; obvious. It is the course which the leg- 
;lative department has pursued. * ""' '••' 
I cannot, the author believes, be doubted 
lat that course has been the cause of the 
resent trouble." 

Whatever else may be said of you, Senator, 

must be admitted that you are a brave man. 

one but a brave man would conceive and 
xecute such an attack as that. But did it 
ot occuj to you that there might be rashness 
1 your bravery ? Did you suppose that such 
aarges could be laid at the door of Congress, 
ith nothing at all at that of the South, and 
obody question the truth of your assertions 
r arraign your tenderness for the rebels? 
he loyal men of the uation have been wont 
) think that some little of the business trou- 
le of the country could fairly and reason- 
bly be charged upon the rebellion and the 
3 miplications necessarily resulting therefrom; 
lit that idea, it appears, has yet to dawn 
pon your mind. They have some faint im- 
ressi' n that those ten States would never 
ave 1 irit an atom of their rights had they not 
jbelled; but no glimmer of that seems yet 
) have reached you. But, in the name of 
!1 logic, where is the connection between the 
^elusion of those States from the halls of 
ongress and the loss to the nation of their 

whole potential wealth," or anypartof it? 
am concerned to know how the non-repre- 
mtation of those States in Congress prevents 
le production of sugar, rice, and cotton. 
/Tiat is tiie modus operandi ? I am really 
sarching for cause and effect in the case, 
nd have not yet discovered it, and your usual 
onsiderateness has not led you to point 

out. But in sober ti-uth, Mr. Johnson, do 
3u really believe that a single pound more 
^ sugar or cotton, or a single quart more of 
ce, would be produced in the Southern 
bates by the admission into Congress of their 
enators and Representatives? Of course, 
)u believe no such enormous absurdity ; 
)u only intimated it in a Pickwickian 
;nse. 

But perhaps you mca.u to charge more di- 
ictly upon military ride the unhappy re- 
dts'you have depicted. If so, can you point 

a single instance where the military au- 
orities have interfered wth the prodvwstion 
' those gte^'lp? ? If you could^ why nbt have 



done so? If not, why make the charge? As 
you have not, shall I venture to supply your 
omission ? May it not be that military rule 
iias so interfered when it protected the other- 
wise unprotected freedman from compulsory 
labor for a pittance that would not keep soul 
and body together, and secured for him some- 
thing like decent wages ? To come straight 
to the point, Mr. Johnson, is not the defi- 
cient production in that region, so fiir as it 
may be traced to other than natural and pro- 
vidential causes, the necessary result of the 
conflict between the former master on th'e 
one hand, intent on forcing the negro back 
into a practical slavery no whit less abject, 
except in name, than his previous condition 
of bondage ; and on the other, the manly and 
determined resistance of the negro to so base 
and galling a degradation ? Hundreds of 
thousands of the American people believe itis; 
and if it is, before God I say that the country 
had better go without Southern production 
of sugar, rice, and cotton for a hundred years 
to come, than abandon the millions of it3 
colored citizens there to so foul a wrong, so 
cruel and hopeless a fate. Sir, this great 
nation cannot afford to write itself down a 
scoundrel. 

Another grave charge which you make 
against the claims of Congressional power in 
the premises is, that " they keep alive a spirit 
of hostile and bad feeling between the people 
of the South and of the North, which must 
act detrimentally (o the good of all." And 
you say, '• To that good fraternal affection is 
absolutely necessary. Without it we will 
continue to be, as during the war, enemies, 
instead of being, as we should be, now that 
the war is ended, friends." 

Mr. Johnson, you claim to be a man of 
honor and truth, and I am very far from ques- 
tioning that claim ; but how you oould pen 
that charge, and believe it to be true, I ara 
unable to see. For seven long years a spirit 
of hostility, unsurpassed among Christian 
people, has "fired the Southern heart" to- 
ward the people of the North, blazing out 
everywhere and in every form all over the 
rebel States, with a fury defying all quench- 
ing, all mitigation, all soothing; anditburns 
there now, with no less intensity than in the 
fiercest days of the war. During the greater 
part of that long period there has not been a 
moment of time when the South, if it had 
the power and had dared, would not have 
cut the throat of every " damned Yankee" 
in the nation. They would do it now, if they 
could. And their present bloodthirsty spirit 
is not intensified by the action of Congress, 
beyond what it would have been by any action 
which deprived them of power to rule the 
nation whioh had crushed their rebellion 
and their nascent Empire of Slavery. On tlie 



11 



other hand, I defy you to point to any such 
malignant manifestation in the North toward 
them, befoi-e, during, or since the war. Never 
on earth were a people freer from malice in 
the prosecution of a war than the people of 
the North were in theirs with the rebellion : 
and the measures adopted by Congress since 
the rebellion have been as little prompted by 
malignity. We could, dou])tless, after its 
overthrow, have shown our "' fraternal affec- 
tion"" for the ruthless slayers of our fathers, 
sons, and brothers, by instantly restoring 
them, as you would now, to all the rights 
they had before they rebelled; but what 
would that have been but to give up all we 
had fought for, exact no .security for the fu- 
ture, and, moreover, actually reward them 
for their diabolical deeds of revolt and mur- 
der? Kentucky did that in 18G5, in a gush 
of magnanimity more Kentuckianthan loyal, 
and now her patriots are under the heels of 
the very rebels they had fought and conquer- 
ed. Maryland, too, not in a ;^ush of mag- 
nanimity, but in cold blood, and with the de- 
liberate purpose to restore her rebel soldiers 
and citizeais to the ballot and to office, has 
done the same in 1867 ; and there, too, the 
rebels are triumphant over their conquerors. 
What have those States gained by their vol- 
imtary self- degradation? Contempt, sir, 
only contempt, from every true patriot in the 
nation. Justthat would Congress have gained, 
had it proved as recreant as Kentucky and 
Maryland. Wc might have shaken hands 
with the rebels all round much more easily 
than bound them over to keep the peace, 
and made thenr powerless for future evil ; but 
when should we have washed the prints of 
their blood-stained fingers from the institu- 
tions of the country? Had we shaken hands 
with them in that spirit of maudlin sentimen- 
tality, could we have looked without a blush 
of shame upon the graves of the more than 
quarter million of heroes who died to save 
those institutions for us? Sir, I 3!xid just 
now that this great nation could not afl"ord 
to write itself down a scoundrel ; I say now 
that it can no more afford t© write itself down 
a fool. And j-et "the dangerous condition 
of the country, ' ' about which I agreed with you 
at the first, is a hundredfold more in the 
probability of its doing that very thing, than 
of its exercising undue or unconstitutional 
severity towawl the South. So magnani- 
mously forgiving and forgetful are the Ameri- 
can people, that probably nothing but a con- 
viction of supreme obligation to their rescued 
country and to posterity could have kept their 
hands upon the rebels until lujw. That con- 
viction is the offspring of Radicalism — nay, 
is Radicalism itself. When it ceases to ani- 
mate them, the danger to the nation and to 
the eause of human freedom will be more im- 



minent than any from the rebellion in the 
very height of its power and success. 

(3ne point more, and I have doae. In im- 
mediate connection -nnth the last quotation 
from your pamphlet you use the following 
language : 

" The only way of correcting this sad state 
of things is for the people to dismiss from 
power at the earliest moment the servants 
who maintain the constitutional doctrines 
herein contested, and to select others who 
will administer the Government in the spirit 
and under the constitutional restraints which 
guided our fathers. It must gladden the 
hearts of all considerate, patriotic citizens 
that the recent elections ilemotistrate that 
this is about to be done. In the Pacific, 
East, West, and Middle States, this has been 
manifested. The people of all sections are 
evidently determined on having this result."' 

Perhaps so, Mr. Johnson ; perhaps not. 
How readily the wish is father to the thought ! 
The October elections, to which you refer — 
and you may throw in with them those of 
November, too — prognosticate no such result. 
The Democracy are welcome to all the crumbs 
of success they can pick up in the odd years; 
the Republicans will tak* the loaves in the 
even years. The net Democratic gain in the 
recent elections, so far as national politics 
is concerned, is one United States Senator. 
At this rate, with but eleven Democrats and 
Johnsouites now in the Senate to start with, 
how many years will it take to overthrow the 
Republican ascendency there ? More, per- 
haps, Mr. Johnson, than you or I may live. 
And until that ascendency is overcome, what 
hope is there of Southern[rebels and Northern 
Democrats (par nobilc fratrum!) gaining 
control of the Government? Meantime, 
what becomes of reconstruction? It marches 
straight on to completion under the acts oi 
Congress as they are., negro suffrage and all. 
There is not a Republican Senator that would 
dare — even if he wished — to vote for their 
repeal, or for any retrograde movement from 
the positions taken in them. The recent 
elections, therefore, have no solid comfort 
for you, nor do they intimidate or discourage 
true Radicals anywhere. Men who stand up 
for principle as they do, are not dismayed or 
disconcerted by casual and temporaiy rever- 
ses, but rather spurred to more resolute bat- 
tle for the right. 

You say that "Radicalism has never any 
settled, wholesome, or generous policy." 
That is just such an estimate as a representa- 
tive of Maryland conservatism might be ex- 
pected to have, but it is one about which 
there is some little room for "an honest dif- 
ference of opinion." I, for instance, with, I 
believe, a large majority of the nation, see 
in the Radicalism of the country, in this 



12 



critical juncture, a ''settled policy" against 
rebel rule at the ballot-box or in the halls of 
Congress, a " wholesome policy'' in the su- 
premacy of loyalty and loyal men in every 
department of the Government, and a " gen- 
erous policy" in the protection and enfran- 
chisement of the only friend of the Union in 
the South during the war, the neguo, for 
more than two hundred years a chattel and a 
slave ; now, through liadicalisvi, afreedman 
and a free citizen forever ! Here, Senator, 
at the close, as in the outset, we diverge. 
Cling, if you please, to purblind, droning, 
effete Conservatism, and drift with it into the 
realms of the rejected and the forgotten ; but 
I will hold on to living, clear-sighted, reso 



lute, and progressive Radicalism, be its fate 
what it may. If Americans, in this the me- 
ridian of their military renown, have not cour- 
age, persistence, and nerve to uphold such 
Radicalism as upheld and saved their country 
in the day of its deadliest peril, they will only 
exhibit a dishonoring example of a people 
unsurpassed in martial valor and achieve- 
ment, but too timid for great civil conflicts, 
too feeble for sharp moral exigencies, top . 
fickle for earnest struggles for the right, and 
too small for the mould of a grand and noble 
destiny. With a high and unfaltering faith 
that they will add no such dark page to the 
already gloomy history of republics, I am, 
Very respectfully, your obd't serv't, 
C. D. Drake, 



MEMORIAL. 



/ 



CHEROKEE NATION, 

Near Fort Gibson, April 10, 1842. 
To his Excellency the President of the United. Slates : 

Honored Sir : The undersigned, on behalf of that portion of the Indian family 
long known as the " Western Chcrokees," beg leave to address you on a subject 
vitally important both to their nation and to the Government of the United States. 
A crisis in their affairs has arrived which requires prompt and energetic action; 
and they enter upon the task assigned to them by a solemn sense of duty, with sen- 
timents of respect and veneration for the constituted authorities of the United States, 
tvhich have heretofore governed all their actions. They have complaints to make 
which can no longer be with safety deferred ; and they will endeavor, in doing so, 
to divest themselves of all unkind feelings against those from whom they have suf- 
fered wrong, and base their appeal upon provisions made by law and treaty stipula- 
tions. 

At the close of President Jefferson's administration, a council was held with the 
Cherokee people upon a proposition to effect a separation, upon which occasion that 
venerated patriot speaks to them as follows : '* The United States, my children, are 
the friends of both parties, and, as far as can be reasonably asked, they are willing to 
satisfy the wishes of both. Those who wish to remove are permitted to send an ex- 
ploring party to reconnoitre the country on the- waters of Arkansas and White rivers, 
and the higher up the better, as they will be the longer unapproached by our settle- 
ments, which will begin at the mouth of those rivers. When this party shall have 
found a country suiting the emigrants, and not claimed by other Indians, we will 
arrange with them and you the exchange of that for a just portion of the country 
they leave, and to a part of which, proportioned to their numbers, they have a right." 

This was the assurance given by the President of the United States, on the 9th 
day of January, 1809, in reply to a petition from a deputation of the then existing 
two parties of the Cherokee nation, designated as the " upper and loiocr towns." 
The whole communication breathes kindness and encouragement, and lays the 
groundwork of all subsequent action upon the plan of organizing an Indian go- 
vernment west of the Mississippi river. It recognizes the division of the Cherokee 
tribe, and from that period they have been known as the eastern and western, or 
emigrant and anti-emigrant party. In 1817 the first treaty arrangement was entered 
into between the United States and the Cherokees, predicated upon, and in pursu- 
ance of, the promise made by the President in 1809, although many of the emigra- 
ting party had already located upon the land referred to, on Arkansas and White 
rivers. The commissioners who negotiated this treaty had the whole previous cor- 
respondence between the Government and Cherokees before them, and understood 
the intentions, wishes, and true interests of both parties. Its 3d and 4th articles 
make provision for a final separation of the Western from the Eastern Cherokees, 
and expressly stipulate that their property shall thcrcnftcr be held separately, and 
that the annuities arising from the sale of their lands shall be divided between them 
in proportion to their numbers. The 5th article provides for the exchange of lands; 
and the interest conveyed by the United States is clearly vested in the western party. 

In 1819 a convention was held by the Hon. John C. Calhoun, Secretary of War, 
with a delegation of Eastern Cherokees, who " expressed their earnest desire to 



remain east of the Mississippi river;" at which convention they stipulated for their 
future residence in the east, confirmed the separation from their western brethren, 
and agreed that their annuity should be paid thereafter, iuw-thirds to the Eastern, 
and one-third to the western Cherokees. 

But a few years had elapsed after the consummation of this arrangement, when 
the Western Cherokees again found themselves surrounded by whhe people, and 
the Government manifested a desire to obtain the lands they occupied for its own 
citizens. Accordingly a new treaty was negotiated in 1828, between the Hon. James 
Barbour, Secretary of War, and a delegation of Western Cherokees, by which the 
latter exchanged their lands in Arkansas for the country they at present occupy. 
T'he preamble to this treaty explains the causes which lead to its negotiation, and 
the 1st and 2d articles define the limits of the new country, with the solemnly pledged 
guarantee that seven millions of acres, with a perpetual outlet west, shall be and 
remain theirs forever. It was made exclusively with the Western Cherokees; they 
were alone responsible for its conditions; and if the bargain had been a bad one, if 
the lands received in exchange had been found less valuable than those relinquished 
in Arkansas, they alone could sufler. No interest of their eastern brethren was 
sacrificed, or even involved in the bargain and sale, or exchange of these lands. 
The 7th article clearly establishes this position, by the stipulation that the ''Western 
Cherokees will leave all the lands to which they are entitled in Arkansas, and which 
was secured to them by the treaty of 8th 3uly, 1817, and the convention of 27th 
February, 1819," when not one acre of land was relinquished on the east of the 
Mississippi river, although an invitation is extended to the Eastern Cherokees to 
join their western brethren, and the most liberal provision is made for emigrants, 
especially from the ''chartered limits of the Slate of Georgia." 

The undersigned can refer with pride to the progress of emigration under the 
treaty of 1828. The United States encountered no difficulty or delay in procuring 
the removal of the Western Cherokees to the country assigned them. They came 
promptly and cheerfully into the wilderness, and overcoming every obstacle incident 
to a first settlement, they in a short time dotted it with their habitations and rich 
cultivated fields. When the commissioners came to treat with them in 1833, they 
were rapidly advancing in improvement and civilization. This treaty was con- 
cluded at Fort Gibson, on the 14th of February, 1833, and to its provisions the atten- 
tion of the Chief Magistrate is now earnestly solicited. It is the last to which the 
United States and the Western Cherokees are parties; and upon its provisions we 
base our hopes of obtaining redress for the series of wrongs we have sustained since 
the usurpation upon our rights under the treaty of 1835. Its caption distinguishes 
the parties to it, as ''commissioners on the part of the United States, and the chiefs 
and head-men of the Cherokee nation of Indians west of the Mississippi, they being 
duly authorized and empowered by their nation." The preamble again designates 
the Indian party as the "chiefs and head-men of the Cherokee nation west of the 
Mississippi," and fully and conclusively proves that the United States and the Wes- 
tern Cherokees were the sole parties to the treaty of 1833. The Eastern Cherokees 
were consulted by neither party on the subject of this treaty ; they had no delegation 
attending the council; offered no opinion or advice concerning the arrangements to 
be made; and manifested no anxiety about the settlement of boundaries, which were 
intended to limit the Cherokee country forever. They were at that time entirely 
indifferent about the affairs of their western brethren, and remained quietly at home 
attending to their own interests. 

Having now shown the existence of two distinct and separate bands of the old 
Cherokee nation, ever since the year 1809; that they divided their property by the 
treaty of 1817 and convention of 1819; that in 1828 the Western Cherokees treated 
with the United States for aw exchange of la?ids, as a separate and independent nation ; 
and that this nation, thus constituted, is the sole party in interest with the United 



^^^ot'^'Hf^ 



3 

States to the treaty ol 14th February, 1833, the undersigned now submit its provi- 
sions for your serious consideration. 

The object of the Government in making this treaty, as avowed at the lime, was 
to "adjust and settle boundary lines between the Cherokees and Creeks, and other 
neighboring tribes, about which there was some dispute ;" and also to fix definitely 
and permanently the boundaries of the Cherokee country, in accordance with the 
provisions of the treaty of 1828. These boundaries are established by the 1st article, 
and a title to the lands, in fee simple, confirmed to the Cherokees, with the solemn 
promise, on behalf of the United States, "that letters patent shall be issued as soon 
as practicable for the land hereby guarantied." This treaty contains no proviso for 
the admission of the Eastern Cherokees, similar to that contained in the 4th article 
of the Creek treaty concluded at the same time, which expressly provides ''that the 
land assigned to the Muscogee Indians, shall be taken and considered as the pro- 
perty of the whole Muscogee or Creek nation, as well of those now residing upon 
the land as the great body of said nation, who still remain on the east side of the 
Mississippi." No condition of this kind can be found in the Cherokee treaty. It 
contains a complete and absolute surrender, by the United States, to the Western 
Cherokees, of all title and jurisdiction to, or over, the ceded lands. It makes no 
reference lo, or reservation under, any existing law of the United States, but on the 
contrary it repeats, by its 3d article, that clause in the treaty of 1828 wherein the 
United States "agrees to give the Cherokees a plain set of laws, and survey their 
lands at the cost of the Government, whenever they desired to own them individu- 
ally." 

The act of Congress of May, 1830, cannot affect the tenure to these lands, as no 
reference is made to it by the treaty under which the Cherokees derive their title. 
and that law is intended exclusively to enable the President to eflect an exchange of 
lands with Indians residing east of the Mississippi, for an equal number of acres west 
of said river, in pursuance of the long settled policy of the Government. There was 
no exchange of lands made by the treaty of 1833. It only confirmed the title vested in 
the Cherokees by the treaty of 1828, which was concluded two years anterior to 
the passage of the law referred to. Hence, the undersigned declare the opinion, 
always entertained by their people, that a full and absolute title, in fee simple, to the 
seven millions of acres rcith the outlet, passed from the United States to the Chero- 
kees, by the treaty of 1833, as fully and effectually as any cession of lands could be 
made by treaty, concluded between the United States and Spain, or France, or any otl>er 
Government or people. This title was confirmed by the ratification of the treaty 
on the 12th of April, 1834, and no subsequent law or treaty stipulation can change 
it, or impair the rights conveyed and guarantied, without the assent of the Western 
Cherokees, as a party to such law or treaty. Having thus, we humbly believe, 
clearly shown, by existing treaty stipulations, that the Western Cherokee nation, as 
organized under the treaty of 1817, are the rightful owners of the soil now contended 
for by the Eastern Cherokees, the undersigned present this humble memorial to 
you as the Chief Magistrate of the United States, and implore your aid and protec- 
tion in this effort on behalf of their people to obtain their just rights. The Western 
Cherokees, by their energy and perseverance, obtained this last resting place for 
their nation — they secured to themselves and their posterity, a territory embracing 
altogether at least fourteen millions acres of land; and made other provisions for 
the benefit of their people. They were the pioneers who first tilled the ground on 
the extreme western border of your extended territory. Placed in the vicinity of the 
then wild and savage tribes of this frontier, and subjected to their long continued 
depredations, the first years of their emigration was exhausted in protecting their 
property and themselves against incursions from their lawless neighbors. Thus did 
the Western Cherokees — the old settlers — the Pilgrims under the treaty of 1817, 
toil and struggle lo obtain the settled home in the far west, promised them by the 



"^—uSl. 



President of the United States as early as 1809. Where arc these people now, and 
where are the rights and immunities so often promised, and at last solemnly pledged 
to them? Why, they are aliens in their own country, with another people and 
other laws ruling over them. And this usurpation has been perpetrated under the 
apparent sanction and authority of the New Echota treaty of 1835 — not by those 
who negotiated that treaty with the United States, but by the very men who op- 
posed the arrangement, from its inception to its confirmation, and who do not now 
acknowledge its validity. 

The undersigned do not complain against their Eastern brethren for making that 
treaty, but they do complain and protest against some of its conditions. It was a 
transaction between the United States and the Eastern Cherokees, bargaining for a 
cession of the lands held by the latter, east of the Mississippi, in which the Western 
Cherokees had no concern. It could not legally affect any rights secured to them 
by former treaties, without their full and voluntary consent and approbation. But 
what are its stipulations? The United States contracts to pay the Cherokees five 
millions of dollars for a relinquishment of all their lands and possessions east of the 
Mississippi river, and then agrees to give them a country in the west, in accordance 
with the provisions of the act of May 28, 1 S30. And the country thus provided 
and given in exchange for that obtained from the Cherokees east, embraces the verp 
tract of land solemnly guarantied to the Western Cherokees by the treaty of 1833, 
and for which, by the condition of that treaty, they ought then to have been in pos- 
session of a patent from the United States. 

The undersigned earnestly solicit the President's attention to this portion of their 
complaint. They ask him to examine the provisions of the treaty of 1833, which 
has never been repealed or annulled by any act to which the Western Cherokees 
have been a party; and then read the conditions of the New Echota treaty, for a plain 
and palpable violation of these provisions. The United States assumes, by the 
treaty of 1835, to bo the owner of the country transferred to the Western Cherokees 
by the treaty of 1828, in exchange for their lands in Arkansas, and confirmed with 
a/t'g simyle title by the treaty of 1833 ; and cedes this country, whole and entire, 
to the Eastern Cherokees^ either as a gratuity or in exchange for their lands east 
of the Mississippi. In order to obtain a clear understanding of the terms of the 
New Echota treaty, we will quote such portions of it as have a bearing upon the 
present question. The preamble gives a resolution of the Senate, which says: "That 
a sum not exceeding five millions of dollars be paid to the Cherokee Indians for all 
their lands and po'ssessions east of the Mississi])pi river." This would be, to all 
intents and purposes, a sale and purchase, with a full consideration paid. The first 
article, however, varies the terms expressed in the above resolution, and reads thus: 
''The Cherokee nation hereby cede, relinquish, and convey to the United States all 
the lands owned, claimed, and possessed, cast of the Mississippi river, and hereby 
release all their claims vpon the United States for spoliations of every kind, for 
and in consideration of the sum of five millions of dollars," &c. But the same 
article contains an agreement to subuiit this question again for the consideration of 
the Senate. The second article then describes the boundaries of the country secured 
to the Western Cherokees by the treaty of 1833, quoting the very words of that 
treaty and then, preparatory to its cession, to the Eastern Cherokees, i\\\s ixxiicXc 
provides that: "Whereas, it is apprehended by the Cherokees, that in the above 
cession there is not contaiued sufficient quantity of land for the accommodation of the 
whole nation, on their removal west of the Mississippi, the United States, in con- 
sideration of the sum of five hundred thousand dollars, therefore, hereby covenant 
and agree, to convey to said Indians and their descendants, by patent in fee simple, 
an additional tract of land, which is described and estimated to contain eight hun- 
dred thousand acres." By the third article the whole country is then conveyed as 
follows: " The United Slates also agree, that the lands above ceded by tlic treaty of 



February 1 4th, 1833, including the outlet, and those ceded by this treaty, shall be 
included in one patent, executed to the Cherokee nation of Indians by the President 
of the United States, according to the provisions of the act of May 28, 1830." 

The undersigned now submit the question : '' Would not the annexation of the 
additional tract of eight hundred thousand acres, for a consideration paid therefor, 
clearly prove that th« $5,000,000 was to be received as payment in full for the hinds 
ceded in the east, and that the party who sold it must provide a country for them- 
selves ; if the United States had not, at the same time, and by the same act, ceded 
to them the lands of the Western Cherokees?" The inference to be drawn from 
these acts, are plain and manifest: The United States are either bound to pay for all 
the lands conveyed to the Eastern Cherokees, out of its own funds, or else the bal- 
ance of the $5,000,000, after deducting the $500,000 paid for the additional tract, 
should be applied for that purpose. The Government, it is presumed, did not in- 
tend to pay both in money and lands, for the possessions relinquished by the Eastern 
Cherokees, otherwise it would not have demanded payment for its own lands given 
in exchange. 

By the convention of 1 8 19, it was estimated that the Western Cherokees com- 
prised one-third of the old nation, and the annuities have since been divided and paid 
in that proportion. If, then, they were possessed of seven millions of acres, with 
an outlet of the same extent, estimated together as containing /ozi?'^ee?i millions of 
acres of land, and it was proposed to purchase of them a part of it, for the accom- 
modation of their Eastern brethren, in proportion to their numbers, the Western 
Cherokees would be entitled to payment, for upwards of nine millions of acres! 
and the value placed upon it, should be made to correspond with the price paid for 
"the additional tract" sold by the United States to the Eastern Cherokees. by the 
same act under which it was conveyed. Is not this a fair and plain presentment of 
the facts of the case? The United States sold to the Eastern Cherokees eight hun- 
dred thousand acres of land, and conveyed to them at the same time, about nine 
millions of acres more, belonging to another party, without the consent of said 
party, or paying value therefor to the rightful owners. Thus have the Western 
Cherokees been dispossessed of two-thirds of their landed possessions, and the act 
has been committed by the Government of the United States, who claimed the 
ownership, after the Indians had obtained lawful possession, and disposed of them by 
the treaty of 1S35, as it would dispose of any of the public lands. Would any 
people or nation upon the face of the earth, provided for as the Western Cherokees, 
voluntarily and tamely surrender possession of their lands, without receiving an 
equivalent? Or, would any nation of people governed by rules of law and equity, 
forcibly take such possession of the property of another, or obtain it without hinder- 
ance, because there existed no power of resistance? Not one single benefit has been 
conferred upon the Western Cherokees by the New Echota treaty, except the addition 
to the general school fund, provided for by the 10th article. The various shops 
and mechanics, now so beneficially employed for the nation, were provided for by 
the treaty of 1833; and no addition is made to these provisions by the treaty of 
1835, The only party intended to be benefited by that treaty, according to the 
stipulations of the I5th article, was the Cherokees then residing east, and those who 
had enrolled for emigration since June, 1833. On the other hand, not only the title 
to the lands has been taken away or changed, btit other rights and privileges of the 
Western Cherokees are curtailed, and all their interests injuriously affected by its 
provisions. 

Now, we seriously ask, ''How did the United States regain possession of the 
lands conveyed to the Western Cherokees, by the treaty of 1828? Or where did the 
Government obtain the power to exercise possessory control over it after the treaty 
of 1833?" That treaty had been approved by the President, and ratified by the 
Senate of the United States ; and was in December, 1835, binding and obligatory 



upon both the contracting parties. It had never been annulled or repealed by any 
act to which the Western Cherokees were a party ; and they never granted, or ac- 
quiesced in the control assumed by the United States in 1835; but always have, and 
do now deny the existence of the power there exercised. 

Let us examine further the treaty of 1835. By the 1st article, as has already 
been shown, the Eastern Cherokees cede to the United States all their lands and pos- 
sessions east of the Mississippi, for and in consideration of the sum of $5,000,000, 
which is to include all their claims for spoliations of every kind. But as doubts had 
arisen about the intention of the Government in making this stipulation, the question 
was again '' submitted to the Senate for their consideration and decision." Now, let 
us turn to the supplementary articles of this treaty, agreed upon on the 1st day of 
March, 1836, and we find that ihe Jive mill mis of dollars was fixed as the value of 
the Cherokee lands east of the Mississippi! And that the sum of $600,000 was 
provided to pay the expenses of their removal west, and to liquidate all their claims 
of every description against the United States, not otherwise expressly provided for. 
This sum of five millions of dollars, therefore, cannot be touched for an expenditure 
under the treaty, except $650,000 required by the 10th article, and $500,000 stipu- 
lated for in the 2d article, as the consideration to be paid to the United States for the 
cession of the additional tract of land. Every other claim is embraced within the 
provisions of the 3d supplementary article, and cannot be taken from the Jive millions 
to be paid as the value of the lands relinquished by the Cherokees. The balance of 
this money, therefore, amounting to four millions and fifty thousand dollars, was due 
to the Cherokees upon the ratification of the treaty, and should have been equally 
divided among them, as provided for in the 15th article, which denominates the reci- 
pients as " the people belonging to the Cherokee nation east, and such Cherokees as 
have removed west since June, 1833!" This money, which is called per capita or 
head-right money, has been long and anxiously looked for by the Cherokee people, 
and, although the Western Cherokees are debarred from all benefit by the terms of 
the treaty, yet they sympathize with their eastern brethren, and ask the question, 
what has become of this money? The balance of upwards of four millions, as we 
have shown, has not been expended for any legitimate purpose ; and it is doubtless 
in some safe depository, intended to be applied in effecting some great national mea- 
sure. The first foothold was obtained in this country by the Eastern Cherokees, 
under the promise that their Western brethren should receive a proportionate share 
of this fund, and participate in all the benefits of the treaty of 1835. And the same 
deception practised upon the credulous of our people, procured the execution of an 
ijistrument in writing, styled, " An act of union between the Eastern and Western 
Cherokees;' dated July 12, 1839. 

The undersigned, a remnant of the old Cherokee settlers, who left the home of 
their fathers, east of the Mississippi, a quarter of a century ago, do now for them- 
selves, and on behalf of the Western Cherokees, most solemnly protest against that 
act of union, as being taken as their act and deed, or that under its provisions they 
can be divested of any rights guarantied to them by former treaties. They do like- 
wise most solemnly protest against the occupancy of their lands under the treaty of 
1835; and recognize no treaty stipulation conveying title to the lands they now oc- 
cupy and claim as their country, except those concluded in 1828 and 1833. And 
lastly, they do solemnly protest against the exercise of any right or jurisdiction over 
their country by a delegation of Cherokees who have recently gone to Washington 
city, purportmg to be a delegation representing the Cherokee nation. 

The undersif^ned, who have been appointed a committee at a convention of Wes- 
tern Cherokees now in session, present this humble memorial to you as the Chief 
Magistrate of the United States, with the fervent prayer that you will maturely con- 
sider their case, and procure justice to be done to the Cherokee nation. 

A delegation of the old men of the nation, formerly chiefs and principal counci- 



Jors, who signed the treaties of J 8 17, 1828, and 1833, have been this day appointed 
to visit the seat of Governnf>ent, clothed with full powers to settle and adjust all the 
afTairs of their nation. 

When they meet you, they will submit distinct and plain propositions for your 
fonsideration ; and as their claim is founded upon sound principles of law, justice, 
and humanity, they hope, under the protection of a kind Providence, for the happiest 
results. 

With sentiments of respect and esteem, we are vour friends, 

JOHN ROGERS, 
Who signed Ike treaty of 1828 and 1833, as 

President of National Committee. 
THOS. WILSON, 

S. C, and signer of treaty of 1817. 
GLASS, his X mark, 
Who signed treaty of 1833 as President of Council. 
his 
JAMES CAREY, x or CHICKEN COCK, 
mark, 
his 
JOHN X SMITH, signer of treaty 1817. 
mark. 

his 
CAPTAIN X DUTCH, and 

mark. 
THOS. L. ROGERS. 
Committee on behalf of Western Cherokees 

Witnesses present at signing- : 
Wm. D. Shaw, 

Thos. L. Hooers, District Judge Cherokee natio7i. 
Peter Harper. 



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